MEMO 13
U.S. Department of Justice
Office of Legal Counsel
Office of the Assistant Attorney General
Washington, D.C. 20530
February 26, 2002
MEMORANDUM FOR WILLIAM J. HAYNES, II, GENERAL COUNSEL, DEPARTMENT OF DEFENSE
RE: Potential Legal Constraints Applicable to Interrogations of Persons Captured by U.S. Armed Forces in Afghanistan
You have asked a series of questions concerning legal constraints that may potentially apply to interrogation of persons captured in Afghanistan. Several of the issues you have raised relate to the applicability of the Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436 (1966), to interrogations that may be conducted for various purposes (and by various personnel) ranging from obtaining intelligence for military operations and force protection to investigating crimes with a view to bringing subsequent prosecutions. As explained below, the Self-Incrimination Clause of the Fifth Amendment, as interpreted by the Supreme Court in Miranda, provides a trial right in a criminal prosecution before U.S. courts and governs the admissibility of statements made by the defendant in a custodial interrogation. The issue of the applicability of Miranda and restrictions it may place on conduct in interrogations, therefore, is best addressed in the context of the subsequent use that is made of statements obtained in custodial interrogation.
As we explain below, the Self-Incrimination Clause (and hence Miranda) does not apply in the context of a trial by military commission for violations of the laws of war. Accordingly, military commissions may admit statements made by a defendant in a custodial interrogation conducted without Miranda warnings. Therefore, to the extent that the only trial-related use of statements obtained in an interrogation will be before a military commission, there is no need to provide Miranda warnings.
As we understand it, the inquiry cannot end there because decisions have not yet been made concerning whether individuals being interrogated will be prosecuted and if so in what forum charges will be brought. The possibility still exists that some detainees may be prosecuted on criminal charges in Article III courts. Thus, you have asked how Article III courts may treat statements obtained in various scenarios without Miranda warnings and whether Miranda warnings should be given as a prudential matter to preserve the possibility of using statements in a criminal trial. Although unwarned statements made in the course of custodial interrogation by law enforcement officers are generally presumed to be compelled under Miranda, thereby rendering them inadmissible in criminal prosecutions before domestic courts, Miranda does not provide an iron-clad rule governing the voluntariness of all custodial statements. Miranda was designed to provide a constitutional rule of conduct to regulate the practices of law enforcement, and where its deterrent rationale does not apply, the Supreme Court has not extended it. Many of the interrogations in question here, which will be conducted for purposes of obtaining information for military operations and intelligence purposes, do not come within the rationale of Miranda. In addition, one of the specific exceptions to Miranda that the Supreme Court has crafted should extend, by a close analogy, to some of the interrogations contemplated here. We divide our discussion to address four categories of statements the United States may wish to admit into evidence in a subsequent criminal prosecution: (1) statements arising out of interrogation conducted by military and intelligence personnel to develop military operations and intelligence information; (2) statements obtained for criminal law enforcement purposes, whether by FBI interrogators or military personnel; (3) statements obtained in the course of a war crimes investigation by members of the criminal investigative services of one of the U.S. Armed Forces; and (4) statements obtained where the objectives of the questioning may be mixed, and the interrogation thus may not fall squarely into only one of the first three categories.
We conclude that the first category of statements is likely to be admissible in an Article III trial even if the statements are obtained without Miranda warnings. Statements from the second category are likely to be inadmissible if they arise from unwarned interrogation. There is a substantial risk that courts will apply Miranda to the third category as well. Finally, in the fourth category -- where the objectives of the questioning may be mixed -- results may be highly fact-dependent, but we believe that the subjective motivations of interrogators in pursuing particular questions should not alter the conclusion that an interrogation conducted for obtaining military and intelligence information should not require Miranda warnings.
We also explain that, even after statements are obtained in an unwarned custodial interrogation governed by Miranda, any subsequent, Mirandized confessions would be admissible in an Article III court, at least so long as any prior, unwarned interrogation did not involve coercion, or where there was an adequate break in events between any coercion and the subsequent, properly Mirandized interrogation.
Finally, in response to your other inquiries, we explain that the Sixth Amendment right to counsel does not apply prior to the initiation of adversary judicial criminal proceedings, and thus is not likely to apply to persons seized in Afghanistan and held overseas. In addition, the Citizens Protection Act, 28 U.S.C. § 530B (Supp. IV 1998), commonly known as the McDade Act -- which places restrictions on government attorneys' conduct with respect to interrogations -- does not apply to Defense Department lawyers.
I. The Self-Incrimination Clause Provides a Trial Right
As the Supreme Court has explained, the Self Incrimination Clause of the Fifth Amendment, on which the Miranda decision is premised, is a "trial right of criminal defendants." United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990). The clause provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. Amend. V (emphasis added). "The Amendment has its roots in the Framers' belief that a system of justice in which the focus is on the extraction of proof of guilt from the defendant himself is often an adjunct to tyranny and may lead to the conviction of innocent persons. Thus, a violation of the constitutional guarantee occurs when one is 'compelled' by governmental coercion to bear witness against oneself in the criminal process." Duckworth v. Eagan, 492 U.S. 195, 209 (1989) (O'Connor, J., concurring).
The protection of the Self-Incrimination Clause is not limited, however, to statements compelled during the course of a court proceeding. Rather, it extends to prior statements subsequently introduced into evidence at a court proceeding. Beginning with Bram v. United States, 168 U.S. 532 (1897), the Supreme Court has held that the Clause bars the introduction in federal cases of involuntary confessions made during certain forms of custodial interrogation. See also Withrow v. Williams, 507 U.S. 680, 688 (1993). In Miranda, the Court held that the privilege against self-incrimination prohibits the admission into evidence of statements given by a suspect to the police during custodial interrogation unless a prior warning has been given advising the defendant of his rights. See 384 U.S. 436 (1966); see also Illinois v. Perkins, 496 U.S. 292, 296 (1990); Duckworth, 492 U.S. at 201 (in Miranda, "the Court established certain procedural safeguards that require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before commencing custodial interrogation"). The Court in Miranda "presumed that interrogation in certain custodial circumstances is inherently coercive and ... that statements made under those circumstances are inadmissible unless the suspect is specifically informed of his Miranda rights and freely decides to forego those rights." New York v. Quarles, 467 U.S. 649, 654 (1984) (footnote omitted). In the years since first announcing the Miranda presumption, the Supreme Court has "frequently reaffirmed the central principle established by that case: if the police take a suspect into custody and then ask him questions without informing him of the rights enumerated [in Miranda], his responses cannot be introduced into evidence to establish his guilt." Berkemer v. McCarthy, 468 U.S. 420, 429 (1984).
It bears repeating that the Miranda presumption is premised on the "trial right of criminal defendants" provided by the Self- Incrimination Clause. Verdugo-Urquidez, 494 U.S. at 264 (emphasis added). The "sole concern" of that Clause, the Supreme Court has explained, is "insur[ing] that the testimony cannot lead to the infliction of criminal penalties on the witness." Kastigar v. United States, 406 U.S. 441, 453 ( 1972). Thus, "[a]lthough conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial." Verdugo-Urquidez, 494 U.S. at 264 (emphasis added). [1] Thus, neither the Self-Incrimination Clause nor Miranda established a free-floating code of conduct regulating the manner in which agents of the federal government may conduct interrogations in any and all circumstances. In other words, neither the Self-Incrimination Clause nor Miranda prohibits an unwarned custodial interrogation as a constitutional violation in itself. Accordingly, it confuses analysis somewhat to speak in terms of an FBI or military interrogator "violating" Miranda or the Fifth Amendment simply by conducting an unwarned custodial interrogation. Whether or not Miranda applies to a given circumstance or requires warnings can only be assessed in view of the use the government makes of statements obtained in the interrogation. If the government never uses the statement in a criminal prosecution where the Self-Incrimination Clause applies, no question of a Miranda "violation" can ever arise. See Quarles, 467 U.S. at 686 (Marshall, J., dissenting) ("[T]he police are free to interrogate suspects without advising them of their constitutional rights. ... All the Fifth Amendment forbids is the introduction of coerced statements at trial.").
In addition, in addressing the scope of proper application of the Miranda warnings, it is critical to bear in mind that the Supreme Court has made clear both in Miranda and in subsequent decisions that the purpose of the Miranda rule is to provide a rule of conduct for law enforcement officers to prevent practices that might lead to defendants making involuntary statements. As the Court put it in Miranda, its goal was to set out "concrete constitutional guidelines for law enforcement agencies and courts to follow." 384 U.S. at 442. The Court has not treated Miranda as establishing an immutable rule that any statement made in any unwarned, custodial interrogation is necessarily involuntary under the Fifth Amendment and cannot be admitted at trial. Rather, in circumstances where the purpose of regulating the conduct of law enforcement officers would not be served, or is outweighed by other considerations, the Court has consistently declined to require that the Miranda procedures be followed in order for a custodial statement to be deemed admissible. For example, in New York v. Quarles, the Court held that when the police arrest a suspect under circumstances presenting an imminent danger to the public safety, they may, without informing him of his Miranda rights, ask questions necessary to elicit information that would neutralize the threat. The Court concluded that in such circumstances, the need to ensure public safety outweighed any benefit that might be gained from the ordinary rule of requiring Miranda warnings. 467 U.S. at 657. Similarly, in Harris v. New York, 401 U.S. 222 (1971), the Court sanctioned the use of statements obtained without Miranda warnings for purposes of impeaching a defendant upon cross-examination. Again, the Court explained that the goal of shaping the conduct of law enforcement officers did not require extending Miranda to exclude the use of unwarned statements for purposes of cross examination: "Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief." Id. at 225.
As explained in more detail below, moreover, the Court's decisions limiting Miranda to circumstances where the purposes of Miranda's judicially crafted code of conduct would be served have not been undermined by the recent pronouncement that Miranda states a constitutional requirement. See Dickerson v. United States, 530 U.S. 428 (2000). The Dickerson Court did not suggest that Miranda warnings are an absolute prerequisite for any custodial statement to be voluntary under the Fifth Amendment and that any statement obtained without the warnings is necessarily inadmissible. Rather, Dickerson expressly endorsed past decisions such as Quarles and Harris that made exceptions to the requirements of Miranda warnings and explained that they simply "illustrate the principle ... that no constitutional rule is immutable." Id. at 441.
II. Trials by Military Commissions
The Self-Incrimination Clause does not apply to trials by military commissions for violations of the laws of war. The Clause is limited by its terms to "any criminal case," U.S. Const., Amend. V, and the Supreme Court has long understood the rights guaranteed by the amendment to be limited to the scope they had at common law in criminal prosecutions at the time of the founding. See, e.g., Ex parte Quirin, 317 U .S. 1, 39-40 (1942); Ex parte Wilson, 114 U.S. 417, 423 (1885) ("The Fifth Amendment, declaring in what cases a grand jury should be necessary, ... in effect, affirm[ed] the rule of the common law upon the same subject."). In Quirin, the Court concluded that a trial by military commission for violations of the laws of war was not a criminal prosecution that required a grand jury indictment at common law and thus expressly held that the Fifth Amendment's requirement of indictment by grand jury does not apply to military commissions. See Quirin, 317 U.S. at 40. See also Application of Yamashita, 327 U.S. 1 (1946). Under the same reasoning, the Self-Incrimination Clause also does not constrain the evidence that military commissions may receive. Trials by military commissions are not "criminal case[s]" within the terms of the Amendment. Rather, they are entirely creatures of the President's authority as Commander-in-Chief under Article II and are part and parcel of the conduct of a military campaign. [2] As a result, they are not constrained by the strictures placed on "criminal case[s]" by the Self-Incrimination Clause (or other provisions in the Bill of Rights). As the Quirin Court stated broadly (albeit in dicta), "the Fifth and Sixth Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission." 317 U.S. at 45. Cf Miller v. United Slates, 78 U.S. (11 Wall.) 268, 305 (1870) ("the war powers of the government ... are not affected by the restrictions imposed by the Fifth and Sixth Amendments").
Accordingly, incriminating statements may be admitted in proceedings before military commissions even if the interrogating officers do not abide by the requirements of Miranda. Cf United States v. Bin Laden, 132 F. Supp. 2d 168, 181, 182 n.10 (S.D.N.Y. 2001) (distinguishing, for purposes of application of the Fifth Amendment, "proceeding[s]" against "'subject[s] of a foreign state at war with the United States'" and "operated pursuant to a temporary military commission specially constituted under the authority of the Joint Chiefs of Staff" from criminal trials before Article III courts (quoting Johnson v. Eisentrager, 339 U.S. 763, 769) n.2 (1950)); Id. at 189 ("Miranda only prevents an unwarned or involuntary statement from being used as evidence in a domestic criminal trial"). [3]
Moreover, with respect to trials of foreign nationals conducted outside U.S. territory, our conclusion is additionally supported by the well-established fact that the Fifth Amendment does not confer rights upon aliens outside the sovereign territory of the United States. See Verdugo-Urquidez, 494 U.S. at 269 ("we have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States"); Johnson v. Eisentrager, 339 U.S. 763, 783 (1950) (finding "no authority whatever for holding that the Fifth Amendment confers rights upon all persons, whatever their nationality, wherever they are located and whatever their offenses"); cf United States v. Curtiss Wright Export Carp. , 299 U.S. 304, 318 (1936) ("Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens. ..."). Accordingly, U.S. military tribunals convened abroad are not required to grant aliens rights under the Self-Incrimination Clause.
III. Criminal Trials Before Article III Courts
Although the Self-Incrimination Clause of the Fifth Amendment does not confer rights upon aliens outside the sovereign territory of the United States, no issue of extraterritoriality would be involved if aliens were brought into the United States for trial in an Article III court. As the Supreme Court has explained, "[t]he privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants." Verdugo-Urquidez, 494 U.S. at 264. Any violation of the right would occur at the trial conducted here in the United States when statements made by the accused were offered into evidence.
The Supreme Court has never squarely held that the Self-Incrimination Clause applies in the criminal trial of an alien whose only connections to the United States consist of an attack on the country followed by his arrest overseas and transportation to the United States to stand trial. The United States, moreover, has recently argued in at least one case that the Self-Incrimination Clause does not apply in such a trial. See Bin Laden, 132 F. Supp. 2d at 181 & n.8. [4]
As a matter of original interpretation of the Fifth Amendment, there may be sound reasons for concluding that the Self- Incrimination Clause does not apply to a trial of an alien whose only connections to this country consist of the commission of a federal crime (perhaps taking place entirely abroad) and involuntary transportation to this country to stand trial. The Clause states: "nor shall any person ... be compelled in any criminal case to be a witness against himself." U.S. Const. Amend. V. In extending this right to "any person," the Framers may have intended to encompass only a limited class of "person[s]" who could claim the protections of the Constitution. Some support for this interpretation can be found in the analysis the Supreme Court has applied in holding that the Fifth Amendment does not apply extraterritorially. In Johnson v. Eisentrager, the Court made clear that the terms of the amendment cannot be read literally to confer rights on "any person" -- a reading that would include aliens overseas who had no connection whatsoever to the United States. As Justice Kennedy summarized in Verdugo-Urquidez, "the Constitution does not create, nor do general principles of law create, any juridical relation between our country and some undefined, limitless class of noncitizens, who are beyond our territory." 494 U.S. at 275 (Kennedy, J., concurring). In describing the limitations on the class of "person[s]" to whom the Fifth Amendment extends, the Court explained that the alien "has been accorded a generous and ascending scale of rights as he increases his identity with our society." Eisentrager, 339 U.S. at 770. Arguably, an alien whose only connection with the United States is an attack upon the country (or its citizens) followed by his arrest overseas and transportation to the United States to stand trial has not established any sort of connection with the country that warrants allowing him the protections of the Fifth Amendment.
Nevertheless, whatever the merits of such an interpretation as an original matter, we understand that your inquiry concerns the likely treatment of the Self-Incrimination Clause given the current state of the Supreme Court's jurisprudence. Approaching the question on that basis, we believe that the Supreme Court's analysis in prior decisions points to the conclusion that the Self-Incrimination Clause would likely be applied in a criminal trial of an alien in the United States even if the alien had no previous connection to this country. That is because the Court's decisions generally reflect a view that any criminal prosecution within the territorial boundaries of the United States is constrained by the requirements of the Fifth Amendment. Even in Eisentrager, for example, the Court's analysis centered repeatedly on the absence of the aliens in question from the territorial jurisdiction of the United States. See 339 U.S. at 769-78; Id. at 771 ("[I]n extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within the territorial jurisdiction that gave the Judiciary power to act.") (emphasis added).
More importantly, in Wong Wing v. United States, 163 U.S. 228 (1896), the Court long ago concluded that the Fifth Amendment rights to grand jury indictment and due process applied to aliens subject to criminal punishment within the United States, see id. at 238. The Court's textual analysis of the Amendment focused on its broad terms guaranteeing that no "person" should be subject to certain treatments and concluded that it should have broad application covering all persons. Thus, the Court first noted that the Fourteenth Amendment's Due Process and Equal Protection Clauses, like the Fifth Amendment, speak in terms of rights guaranteed to "any person." See id. The Court explained that "[t]hese provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or nationality." Id. It concluded that "[a]pplying this reasoning to the Fifth and Sixth Amendments, it must be concluded that all persons within the territory of the United States are entitled to the protection guaranteed by those amendments." Id.
On its face, the analysis in Wong Wing was not limited to aliens who had established particular connections with this country. To the contrary, the Court framed its reasoning in terms applicable to aliens who had established no ties to the country because they had never effected a lawful entry into the United States. It thus contrasted Congress's power to "forbid aliens or classes of aliens from" entering the country with its power to subject "such aliens to infamous punishment at hard labor," which could be done only through "a judicial trial to establish the guilt of the accused." Id. at 237. Similarly, in one of the decisions marking the most restrictive view of the extraterritorial application of the Constitution -- denying its application even to citizens abroad -- the Court has stated in dicta that the constitutional guarantees in the Fifth and Sixth Amendments "apply only to citizens and others within the United States, or who are brought there for trial for alleged offenses committed elsewhere." Ross v. McIntyre, 140 U.S. 453, 464 (1891) (emphasis added). Taking a similar territorial approach, the Court has held that the Fifth Amendment's Due Process Clause applies to aliens even if their "presence in this country is unlawful, involuntary, or transitory." Matthews v. Diaz, 426 U.S. 67, 77 (1976). [5]
To be sure, in Verdugo-Urquidez the Court stated that Wong Wing addressed "resident aliens" and thus the decision cannot avail "an alien who has had no previous significant voluntary connection with the United States." 494 U.S. at 271. See also id. ("These cases, however [including Wong Wing], establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country."). Despite that characterization, however, as noted above the analysis in Wong Wing did not distinguish between resident aliens and other aliens, and in subsequent cases since Verdugo-Urquidez the Court has described the decision in broader terms -- terms consistent with the view that the Self-Incrimination Clause would apply to criminal trials of any aliens in the United States. See Zadvydas v. Davis, 121 S. Ct. 2491, 2501 (Wong Wing held that "all persons within the territory of the United States are entitled to the protection" of the Fifth Amendment, noting that decisions limiting application of constitutional rights to aliens "rested upon a basic territorial distinction"); see also id. at 2506 (Scalia, J., joined by Thomas, J., dissenting) (suggesting that Wong Wing draws no distinction between "aliens arrested and detained at the border" before entry and those already within the country).
The analysis in Verdugo-Urquidez itself, moreover, on balance tends to suggest that the present Court would be inclined to reach the same conclusion. Verdugo-Urquidez involved the application of the Fourth Amendment to searches and seizures conducted by U.S. law enforcement personnel on an alien's property outside the United States. In approaching that issue, the Court framed its entire analysis by first distinguishing the Fifth Amendment and explaining that the Fourth Amendment "operates in a different manner than the Fifth Amendment, which is not at issue in this case." 494 U.S. at 264. The Fifth Amendment, the Court emphasized, provides a "fundamental trial right," rather than directly regulating the conduct of police prior to trial. Id. In addition, the Court based its analysis largely on the particular terms of the Fourth Amendment, which limit the right it describes to "the people." Id. The Court emphasized that this limitation "contrasts with the words 'person' and 'accused' used in the Fifth and Sixth Amendments regulating procedure in criminal cases," thus suggesting that the procedure in criminal cases (within the United States) would be the same for all persons. Id. at 265-66. See also id. at 265 (the Fourth Amendment "by contrast with the Fifth and Sixth Amendments, extends its reach only to 'the people"') (emphasis added); id. at 269 (noting that the Fifth Amendment "speaks in the relatively universal term of 'person"'). Justice Kennedy, moreover, who provided the fifth vote for the majority, also wrote separately and noted that, where the "United States is prosecuting a foreign national in a court established under Article III, ... all of the trial proceedings are governed by the Constitution." Id. at 278 (Kennedy, J., concurring). Given the Court's explicit acknowledgment of the textual differences between the Fourth Amendment and the Fifth Amendment, we think that Verdugo-Urquidez does not provide strong support for the claim that the Fifth Amendment does not apply to the trial in the United States of an alien who has no previous connections with this country.
Finally, it bears noting that the Court has consistently described the Self-Incrimination Clause as a fundamental trial right that is critical for protecting the integrity of the trial process. At times the Court has suggested that the Clause plays a critical role in ensuring the reliability of confessions and thus protects the truth-finding function of a trial. See, e.g., Application of Gault , 387 U.S. 1, 47 ( 1967) ("The privilege against self-incrimination is, of course, related to the question of the safeguards necessary to assure that admissions or confessions are reasonably trustworthy, that they are not the mere fruits of fear or coercion, but are reliable expressions of the truth."); Molloy v. Hogan, 378 U.S. 1, 7-8 (1964) ("[T]he American system of criminal prosecution is accusatorial, not inquisitorial, and ... the Fifth Amendment privilege is its essential mainstay. Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own mouth.") (citation omitted). At other points the Court has stressed that the privilege is critical "to preserving the integrity of a judicial system in which even the guilty are not to be convicted unless the prosecution 'shoulder the entire load."' Tehan v. United States ex rel. Shott, 382 U.S. 406, 415 (1966); see also id. at 416 ("[T]he Fifth Amendment's privilege against self-incrimination is not an adjunct to the ascertainment of truth."). Under either rationale, the protection provided by the Clause is treated as critical for the integrity of the trial process itself. It thus seems likely that the Court would conclude that it applies in any criminal case, regardless of the status of the defendant as an alien.
Lower courts that have addressed the issue (albeit only in dicta in some cases), have concluded that the Self-Incrimination Clause does apply to trials of aliens, even if they have not established any connection with this country. [6]
The conclusion that the Self-Incrimination Clause will likely apply in any future trial, however, does not in itself answer the question how the decision in Miranda will apply. Under Miranda, evidence developed from custodial interrogation is not inflexibly presumed to be compelled, and thereby rendered inadmissible, simply because interrogators have neglected to provide the warnings outlined in Miranda. Not all custodial interrogation is subject to Miranda's requirements. We address below four kinds of statements that the United States might wish to admit into evidence in an Article III trial: (1) statements arising out of interrogations intended to develop military operations and intelligence information; (2) statements obtained for criminal law enforcement purposes, whether by FBI interrogators or military personnel; (3) statements obtained in the course of a war crimes investigation by members of the criminal investigative services of one of the U.S. Armed Forces; and (4) statements obtained in an interrogation that may have mixed objectives and does not fall purely into only one of the previous categories. We conclude that the first category of evidence is likely to be admissible in an Article III trial even if Miranda warnings are not given. The second category of evidence is likely to be inadmissible unless the interrogators comply with Miranda. There is a substantial risk that courts will apply Miranda to the third category as well. Finally, for interrogations in the fourth category, results will likely turn on a highly fact-dependent inquiry.
A. Questioning by military and intelligence personnel for military operations and intelligence information
We conclude that statements obtained in the course of interrogation by military and intelligence personnel for purposes of gathering intelligence and military operations information need not satisfy Miranda standards in order to be admitted at an Article III criminal trial. Our conclusion is based on two separate, independent grounds. First, although Miranda establishes a presumption that statements made during unwarned custodial interrogation are involuntary, and thus inadmissible at trial under the Self-Incrimination Clause, Miranda and its progeny make clear that this presumption of involuntariness is not immutable or universally applicable. In particular, the Court has treated Miranda as a rule designed to guide the conduct of officials in law enforcement agencies and has repeatedly limited the reach of Miranda's warning requirements based on the need for regulating the conduct of law enforcement officers. The fundamental objective of regulating that conduct has no application whatsoever in the context of interrogations of battlefield detainees for purposes of obtaining intelligence and military operations information. Under the reasoning that the Supreme Court has used to define the limits of Miranda, we conclude that interrogators engaged in such questioning need not give Miranda warnings to ensure that voluntary statements will be admissible in a later criminal trial. Second, we conclude that the established public-safety exception to Miranda should extend by analogy to interrogations of battlefield detainees for purposes of gathering intelligence and military operations information.
I. Miranda's deterrence rationale does not apply
As previously explained, the Supreme Court crafted the requirements of Miranda as a means for implementing the protections of the Self Incrimination Clause. In Miranda, the Court held that, because the environment in a custodial police interrogation "contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely," 384 U.S. at 467, confessions made during the course of such custodial interrogation are presumptively involuntary and, unless certain warnings are given to defuse the coerciveness of the environment, must be excluded at trial under the Self-Incrimination Clause. See generally Dickerson v. United States, 530 U.S. 428 (2000). If Miranda stated an immutable presumption concerning the voluntariness of custodial statements, it might well mean that in any custodial interrogation -- even an interrogation of a battlefield detainee undertaken to obtain information for military operations -- Miranda warnings would have to be given for any statements to be admissible at a later trial. Interrogation in the custody of the armed forces after capture on the battlefield might be considered at least as inherently coercive a scenario as questioning in custody at a police station. And if Miranda provided an absolute rule concerning the voluntariness of statements in such a custodial interrogation, it might be read to mean that statements obtained in a military interrogation could not be used in a subsequent criminal trial if the requisite warnings had not been given.
The Supreme Court, however, has never taken such an approach to Miranda. To the contrary, the Court has emphasized that the presumption crafted in Miranda and the warnings outlined there were intended to establish guidelines for the conduct of law enforcement officers pursuing criminal investigations. Although the purpose of the guidelines was to ensure the voluntariness of any statements obtained from custodial interrogations, the standards of conduct were not intended to set down an inflexible rule for evaluating voluntariness under the Fifth Amendment. The focus of Miranda, in other words, is not establishing a universally applicable (and constitutionally mandated) standard for measuring the voluntariness of statements made in any custodial situation. Rather, it is designed to provide rules of conduct specifically for the guidance of U.S. law enforcement officials -- or, as the Court put it, "concrete constitutional guidelines for law enforcement agencies and courts to follow." Miranda, 384 U.S. at 442. [7] See also Dickerson, 530 U.S. at 434-35 (quoting same language from Miranda). Thus, the Supreme Court has repeatedly emphasized that the requirements of Miranda are designed to regulate the conduct of custodial interrogations arising out of criminal law enforcement investigations. The Miranda Court focused its concern on "police" interrogation and practices, and in later cases the Court has emphasized that the rationale behind Miranda is providing a "deterrent effect on proscribed police conduct." Harris, 401 U.S. at 225. Similarly, in Thompson v. Keohane, 516 U.S. 99 (1995), the Court described Miranda in terms of the requirements it imposed on "law enforcement officers." Id. at 107. See also Quarles, 467 U.S. at 656 ("The Miranda decision was based in large part on this Court's view that the warnings which it required police to give to suspects in custody would reduce the likelihood that the suspects would fall victim to constitutionally impermissible practices of police interrogation. ..."); Rhode Island v. Innis, 446 U.S. 291, 301 (1980) ("the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices"); Fare v. Michael C. , 442 U .S. 707, 718 ( 1979) ("Miranda's holding has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation. ..."). When the Court has applied Miranda to interrogation by government officials other than law enforcement agents, it has done so based upon some finding of a nexus between the interrogation in question and criminal law enforcement. See, e.g., Mathis v. United States, 391 U.S. 1, 4 (1968) (applying Miranda to interview conducted by Internal Revenue Service agents with person in state custody largely upon basis that "tax investigations frequently lead to criminal prosecutions"); Estelle v. Smith, 451 U.S. 454, 466-69 (1981) (applying Miranda to court-ordered psychiatric examinations of criminal defendants); United States v. Mata-Abundiz, 717 F.2d 1277, 1279-80 (9th Cir. 1983) (applying Miranda to INS questioning of criminal suspect); United States v. Gupta, 183 F.3d 615, 617-18 (7th Cir. 1999) ("Miranda ... is a mismatch for the immigration process, at least at the outset. ... Much more difficult is the question when ... the criminal investigation is far enough advanced [to trigger Miranda]."); see also 2 Wayne R. LaFave et al., Criminal Procedure § 6.10(c), at 622 (2d ed. 1999) ("[T]he courts have generally held that government agents not primarily charged with enforcement of the criminal law are under no obligation to comply with Miranda.").
Where the rationale of shaping the conduct of law enforcement officers does not apply or is outweighed by other considerations, the Court has consistently concluded that Miranda's requirements do not apply and that statements obtained during custodial interrogation without Miranda warnings may still be introduced into evidence consistent with the Fifth Amendment's prohibition on compelled testimony. Thus, in New York v. Quarles, the Court concluded that where police need to obtain information critical for ensuring public safety, they need not provide Miranda warnings before initiating custodial questioning. 467 U.S. at 657-58. And in Harris v. New York, the Court concluded that Miranda's purpose of providing a deterrent to regulate police conduct would be served sufficiently if un-Mirandized statements were excluded solely from the prosecution's case in chief, but were permitted for impeachment purposes on cross- examination. See Harris, 401 U.S. at 225 ("Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief."). As the Harris Court explained, the benefits in terms of guiding conduct that would be derived from precluding the use of an unwarned statement upon cross-examination were too speculative and attenuated to outweigh the clear benefits that admitting the statements would provide in aiding "the jury in assessing [the defendant's] credibility." Id. The Court has thus demonstrated that the deterrent rationale behind Miranda limits the range of situations in which the case will be applied.
Similarly, drawing on the Supreme Court's analysis in Miranda and its progeny, lower courts have identified other situations where Miranda's goal of shaping police conduct has no application and where Miranda's warning requirements therefore do not apply. For example, federal courts have repeatedly admitted unwarned custodial statements obtained by foreign police officers. [8] [9] If Miranda provided an immutable rule that an unwarned statement made in custodial interrogation is necessarily involuntary, such statements would be absolutely barred from use at trial under the Self-Incrimination Clause, regardless of whether they were obtained by foreign police or anyone else. Such statements are admitted into evidence, however, because the rationale behind Miranda -- shaping police conduct -- does not apply to foreign police. Foreign police, of course, are not subject to the requirements of the federal Constitution, and there is thus no basis for attempting to force them to comply with Miranda's guidelines. Moreover, excluding statements obtained by foreign police without Miranda warnings would have no practical deterrent effect, because ensuring admissibility of evidence in U.S. courts is not a relevant incentive for police in another nation. As one court of appeals has explained,
the United States Constitution cannot compel such specific, affirmative action by foreign sovereigns, so the policy of deterring so-called 'third degree' police tactics, which underlies the Miranda exclusionary rule, is inapposite to this case. Here the statements were not coerced, as revealed by testimony at the original trial which we have scrutinized. The evidence was therefore admissible.
Kilday v. United States, 481 F.2d 655 (5th Cir. 1973) (citations omitted). [10]
The Supreme Court's recent declaration that Miranda is a "constitutional decision," Dickerson, 530 U.S. at 438, does not alter the above analysis. It might be argued that after Dickerson, Miranda must be understood as a "constitutional rule" establishing a fixed test for determining whether statements are "compelled" for purposes of the Fifth Amendment. Cf: id. at 455-56 (Scalia, J., dissenting) (suggesting that this must be the implication of the Court's decision). That gloss on Dickerson might be used to cast doubt on the exceptions to Miranda noted above based on the theory that the exceptions are rooted in the mistaken idea that Miranda sets a prophylactic rule that is not constitutionally required. In Quarles, for example, the Court based its analysis in part on the statement that "[t]he prophylactic Miranda warnings therefore are 'not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected.'" 467 U.S. at 654. [11] Now that the Court has made clear that Miranda is a constitutional requirement in its own right, the argument would go, practical considerations such as deterrence cannot limit the application of Miranda's rules.
That approach, however, distorts Dickerson. In establishing Miranda as a constitutional rule, Dickerson merely held that the body of law established by Miranda and its progeny set constitutional requirements determined by the Court that could not be disturbed by an act of Congress. [12] Nowhere did the Dickerson Court suggest that it was radically reforming the rationale behind Miranda and later cases to make Miranda an inflexible constitutional determination that all unwarned custodial statements are necessarily "compelled" testimony under the Fifth Amendment. Instead, the Court treated Miranda, as the language from the original decision itself suggests, as "constitutional guidelines for law enforcement agencies" crafted by the Court. 384 U.S. at 442. Because they were defined by the Court as constitutional requirements, Congress could not modify them, but in the Court's view, that did not mean that courts could not define limits on Miranda based on the same balancing of interests outlined in the cases above (and employed by courts in other constitutional contexts). In keeping with that understanding, the Court never cast doubt on the various limitations and exceptions to Miranda already embedded in the Court's jurisprudence. To the contrary, Dickerson explicitly embraced the Court's existing decisions. Addressing the decisions in Quarles and Harris specifically, the Court stated that they "illustrate the principle -- not that Miranda is not a constitutional rule -- but that no constitutional rule is immutable." 530 U.S. at 441. The Court concluded that "the sort of modifications represented by these cases are as much a normal part of constitutional law as the original decision," id. (emphasis added), and held that Miranda "and its progeny in this Court" continue to "govern the admissibility of statements made during custodial interrogation in both state and federal courts" id. at 432 (emphasis added). Thus, as one court of appeals has observed, "the Dickerson majority expressly incorporated existing decisions, like Quarles, into the 'constitutional' right to a Miranda warning it elucidated in Dickerson." United States v. Talley, 275 F.3d 560, 564-65 (6th Cir. 2001).
There is certainly nothing in Dickerson that expands Miranda to require warnings in all forms of custodial interrogation. In fact, the Dickerson Court repeatedly recognized that the core function of Miranda was to address "the advent of modern custodial police interrogation," which "brought with it an increased concern about confessions obtained by coercion." 530 U.S. at 434-35 (emphasis added). See also id. at 443 ("Miranda has become embedded in routine police practice") (emphasis added); id. (discussing the "impact of the Miranda rule on legitimate law enforcement") (emphasis added). Nowhere in the opinion did the Court indicate any inclination to depart from past practice and unhinge the scope of Miranda from the rationale of regulating U.S. law enforcement officers that has guided the Court in the past.
The same logic that has underpinned the exceptions to Miranda outlined above demonstrates that Miranda warnings have no application in interrogations conducted by military and intelligence officers for purposes of gathering intelligence and military operations information from a battlefield detainee. Nothing in the Court's explanation of Miranda and its progeny applies to, or even addresses, the interrogation of enemy prisoners in a military theater of operations for the purpose of obtaining military and intelligence information. Applying Miranda's requirements in this context would do nothing to advance the goal that the Supreme Court has repeatedly treated as a guiding factor in determining the scope of Miranda -- namely, regulating the conduct of law enforcement officials in criminal investigations. Indeed, where an interrogation is conducted for obtaining military operations and intelligence information, Miranda's concerns for regulating questioning in the law enforcement context are irrelevant. The goal in such a scenario is not to carefully balance the rights of a criminal defendant under our constitutional system against the needs of law enforcement, but rather to ensure that our troops and intelligence officers can extract as much useful information as possible for protecting our troops and securing our military objectives. The Court's stated concerns for providing "constitutional guidelines for law enforcement agencies and courts," in other words, are a mismatch for this context. Miranda, 384 U .S. at 442.
The conclusion that the purposes of Miranda would not be served by applying the decision to interrogations conducted for military operations and intelligence information is bolstered by the fact that restrictions imposed by the Fourth, Fifth, and Sixth Amendments generally do not apply to the actions of our armed forces in an armed conflict. This Office recently opined that the Fourth Amendment does not apply to United States military actions, both within the United States and abroad, taken to combat terrorists in the wake of the September 11 attacks. See Memorandum for Alberto R. Gonzales, Counsel to the President & William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General & Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority for Use of Military Force To Combat Terrorist Activities Within the United States. at 22-34 (act. 23, 2001). As we explained, in reversing a lower court decision to apply the Fourth Amendment extraterritorially to non-U.S. citizens, the Supreme Court pointed out the untenable consequences of applying the Fourth Amendment to United States military operations abroad. See Verdugo-Urquidez, 494 U.S. at 273-74. Such a rule would result in applying the Fourth Amendment "also to other foreign policy operations which might result in 'searches or seizures'" -- a result that "would have significant and deleterious consequences for the United States in conducting activities beyond its boundaries." Id. at 273. The Court explained:
The United States frequently employs Armed Forces outside this country -- over 200 times in our history -- for the protection of American citizens or national security. ... Application of the Fourth Amendment to those circumstances could significantly disrupt the ability of the political branches to respond to foreign situations involving our national interest ... [and] plunge [the political branches] into a sea of uncertainty as to what might be reasonable in the way of searches and seizures conducted abroad.
Id. at 273-74 (citations omitted). The Court further noted that in 1798 during the Quasi War with France, Congress authorized President Adams to order the seizure of French vessels on the high seas) and "it was never suggested that the Fourth Amendment restrained the authority of Congress or of United States agents to conduct operations such as this." Id. at 268. Thus, within the first decade after the Constitution's ratification, the Fourth Amendment was understood not to restrict military operations against the Nation's enemies.
Likewise, the Just Compensation Clause of the Fifth Amendment does not attach to actions taken as a matter of military necessity by United States Armed Forces in the field, even when those actions entail the destruction of property owned by United States citizens (and, indeed, even when the destruction occurs within the territory of the United States). The general rule is that "the government cannot be charged for injuries to, or destruction of, private property caused by military operations of armies in the field." United States v. Pacific R.R., 120 U.S. 227, 239 (1887).
We believe that, as in the above cases, "significant and deleterious consequences," Verdugo-Urquidez, 494 U.S. at 273, would result from applying Miranda to the interrogation of a prisoner who was apparently a member of a transnational terrorist group, who was captured while engaged in military operations against the United States and its allies, and who was being questioned for the purpose of gathering intelligence of military value to the United States in the conflict. Interrogation of enemy prisoners is a practical necessity for waging war effectively. Prisoners are always interrogated for information concerning their unit, enemy troop positions and strength, and other information that may be relevant to military operations in the area, to force protection, and (particularly in this conflict) to broader national security and intelligence objectives. Such interrogation serves the specifically military and intelligence objectives of the armed forces in the field of combat and the interests of national security. It is not, and is not intended to be, a part of the law enforcement apparatus of the United States. Subjecting the conduct of all such interrogations to the standards outlined in Miranda based on the possibility that some statements from an interrogation might later be used in a criminal trial would make no sense.